Carey v. State , 74 Tex. Crim. 112 ( 1914 )

Appellant was convicted of murder in the second degree and his punishment fixed at ten years confinement in the penitentiary.

It is unnecessary to make any extended statement of the evidence. It raised the issue of murder in the first and second degrees, self-defense generally, as well as self-defense predicated on previous threats. The court also charged on manslaughter.

Appellant and deceased, Will Griffin, were both tenants on the Cage farm and had been for some time. They lived 400 or 500 yards apart and in the same field. The land they, respectively, rented adjoined. No fence separated them, — merely a turn-row. For some weeks prior to the killing deceased claimed that appellant was trespassing on his part of the land and taking some of his away from him and complained to appellant and others thereabout. Appellant denied this and claimed that he was not trespassing on any of deceased's land but had only his own. Appellant claimed there was no ill-will on his part towards deceased because of any of the troubles between them, but that deceased had ill-will towards him thereabouts. On the morning of the killing, March 17, 1913, appellant had a business engagement in the town of Stephenville, some three or four miles distant. He, at first, intended to go horseback but his wife, learning he was going and wanting some groceries and another article, wanted him to go in his wagon, but he claimed he didn't have time to do all the shopping she wanted done, and instead of going in his wagon he would go in his buggy and get her the groceries she wanted. He thereupon hitched his horse to his buggy and started to town. The road to town went from his house straight down beyond deceased's house. That was the only practicable road to town and the one, not only usually traveled by all the other neighbors, but by appellant himself. When he started to town he took with him his .32-caliber, 9-ball pistol on his person.

Notwithstanding the said trouble between appellant and deceased of several weeks standing, each had been at work from time to time and practically all the time in their respective fields. The deceased, during the time worked up to within 75 or 100 yards of appellant's, house. On the morning of the killing and before he started to town appellant had been in another direction a few miles on horseback to look at some yearlings and attend to some other business. He took with him his pistol on that occasion. The deceased that morning was working his land in his part of the field with a double team, cutting stalks with a riding stalkcutter. One end of the rows where he was cutting stalks, bordered on said road, and in his work, going from one end to the other, he approached near said road when he would turn his team and stalkcutter around and start in the opposite direction. Appellant said he did not know at the time he left his home or started to town or prior thereto that deceased was at said work in his field, and that he did not see him or know that he was so at work until he had gone some distance from his home and got fifty or seventy-five steps from him when he discovered him. Then the deceased had turned his team at the end of the rows starting from the road again. That he said nothing to deceased and deceased said nothing to him, until appellant got about opposite the deceased, the deceased up to that time being at or on his stalkcutter. Appellant testified that deceased then said to him: "``Carey, God damn you, stop.' I told him, ``Will, go on and leave me alone, I don't want no trouble with you,' and he said, ``Carey, I am going to kill you,' and I told him to take the land and go on with it and he came on with the same words, said he would kill me." Appellant then further testified that the deceased approached to within one or two steps of him, run his hand in his pocket and he then got his pistol and shot deceased in self-defense while deceased was thus near to and approaching him and in the act of assaulting him. Appellant claims he sat in his buggy and never got out of it during the whole time up to the shooting. Appellant claims that he shot at him three or four times. Others who heard the shots, in effect, say several times. It was shown, without contradiction, by an examination of the body of the deceased that two balls only struck him — one in the left side of the left leg four inches below the knee, the ball striking the bone; that the only other shot that struck him entered his body two inches to the left of his left nipple, went entirely through the body and emerged under the arm pit of the right arm; that this ball went through the aorta and killed him. The effect of the doctor's testimony is that the wound was immediately fatal and deceased could not have gone any distance after being so shot. The body of deceased was found, as the witnesses show, from ten to seventeen steps from the road in which appellant sat in his buggy; that his feet were towards the road and his head further therefrom, his left hand down towards his side and his right extended up above his head; that immediately after the first shot, witnesses hearing it, saw deceased's team running away. Deceased's body was searched and he had no weapon of any kind on or about his body when killed, and had only a small pocket-knife in his pants pocket and it closed. Deceased's wife testified he had no weapons of any kind. Just after the shooting appellant ran down the road towards deceased's house some distance, from 50 to 100 yards, then turned and drove rapidly in a lope back to his own home. Upon reaching it, Mrs. Head, who was one of his neighbors and visiting his wife when he started to go to town, and when he thus returned, testified, in effect, that when she heard the first shot she was in the house but at once went to the door and thence to the front gate and that as appellant ran up to his house, said to his wife, "Lottie, run look in the trunk and get me some more cartridges, I will make that damn son-of-a-bitch threaten to kill me." And he further said he would go down there and finish him up, and kill the whole family if they monkeyed with him; that she beseeched him not to go back down there because she was afraid that deceased's brothers would kill him, appellant, if he did. Appellant took his horse out from the buggy as quickly as he could, saddled him and went in a fast lope to Mr. Lucas' who was in sight in his field some distance away and when he ran up to Lucas he said: "Mr. Lucas, I want you to go and ``tend to Will." Lucas said, "What is the matter?" Appellant said, "He threatened to kill me and I shot him." Lucas said, "Where at?" and appellant said, "Down in his field," and appellant immediately rapidly rode away.

Several witnesses testified that very soon after the killing, some of them hearing the shots and their attention being attracted to the place of the shooting thereby, went to the body of the deceased; that they examined for the tracks of the deceased at the time and found that his tracks where he had stopped his stalkcutter on this occasion showed that he was not nearer than about ten steps from the said road and that none of his tracks there showed that he went near the road.

Unquestionably appellant's testimony raised self-defense in his favor. His, and the testimony of others also raised self-defense based on threats of the deceased.

Appellant requested several charges on these subjects and in some particulars attacks the charge of the court thereon. We will, therefore, here quote the whole of the court's charge on these subjects. It is:

"26. Upon the law of ``self-defense' you are instructed, gentlemen, that homicide is permitted by law when inflicted for the purpose of preventing the offense of murder or the infliction of serious bodily injury, when the killing takes place under the following circumstances: First: It must reasonably appear by the acts or by the words coupled with the acts of the person killed that it was the purpose and intent of such person to commit such murder or to inflict such injury. Second: The killing must take place when the person killed was in the act of committing such murder or of inflicting such injury or after some act done by him showing evidently an intent to commit such murder or to inflict such injuries.

"27. A party whose person is unlawfully attacked is not bound to retreat in any event in order to avoid the necessity of killing his assailant.

"28. An attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation of fear of death or some serious bodily injury. But in this connection, you are instructed that it is not necessary to the right of self-defense that the danger did in fact exist; if it reasonably appears from the circumstances of the case that danger existed, the person threatened with such apparent danger had the same right to defend against it and to the same extent that he would have were the danger real, and in determining whether there was reason to believe that danger did exist, the appearance must be viewed from the standpoint of the defendant and from no other standpoint.

"29. Now, therefore, if the defendant killed the deceased he was justified in doing so, if he did so to prevent the deceased from murdering or inflicting serious bodily injury upon him, the defendant, provided it reasonably appeared to the defendant by the acts or by the words coupled with the acts of the deceased, taking into consideration the relative strength of the parties and other circumstances of the case, that it was the purpose and intent of the deceased to murder the defendant, or to inflict serious bodily injury upon him, the defendant, provided the killing took place while the deceased was in the act of committing such murder or of inflicting such injury on the defendant or after some act done by him showing evidently an intent to murder the defendant or to inflict serious bodily injury upon him, the defendant, viewed from the defendant's standpoint.

"30. Where the defendant accused of murder seeks to justify himself on the ground of threats against his life he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that at the time of the homicide the person killed, by some act then done manifested an intention to excuse (execute) the threat so made.

"31. Now if you believe from the evidence in this case that prior to the homicide the deceased had made threats against the life of the defendant and to inflict serious bodily injury on defendant and that at the time of the homicide the deceased, by some act then done manifested an intention to excuse (execute) the threats so made, or if you have a reasonable doubt as to whether or not he did, then you will give the defendant the benefit of such doubt and acquit him.

"32. Again, if you believe from the evidence in this case that the deceased unlawfully attacked the person of defendant or if it reasonably appeared to the defendant, viewed from his standpoint, that the deceased was about to make, or was in the act of making, an unlawful attack upon him, the defendant, or if you have a reasonable doubt as to whether or not the deceased did make such an attack or was about to make such an attack, or as to whether or not it reasonably appeared to the defendant. that the deceased was about to make such attack, viewed from the standpoint of the defendant, then you are instructed that the defendant was not bound to retreat in any event in order to avoid the necessity of killing the deceased."

It will be seen from this charge that the court charged self-defense and defense based on threats, without in anyway charging on provoking the difficulty or in anyway limiting or circumscribing appellant's defense on either of these grounds.

Appellant requested, but the court refused to give, his special charge No. 3, which is, omitting the heading:

"The party whose person is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. Therefore you are instructed that if you believe from the evidence in this case, that the defendant, Bun Carey, knew that the deceased, Will Griffin, was working in his field by the side of the public road which Carey usually traveled in coming to Stephenville, and Carey was traveling said road on his way to Stephenville at the time of the homicide, defendant was not bound to take some other road to town or diverge from his course in order to avoid a meeting with the deceased, and the defendant had the further right to arm himself to protect his life against any former or expected attack upon him by the deceased, and to carry said arms whenever and wherever he believed his life to be in danger, and was not bound to retreat in any manner, and the fact that he did so, would not in any manner militate against, alter, or abridge his right of self-defense if he acted upon the reasonable appearance of danger or serious bodily injury, or death, either one or both, at the time of the homicide." Appellant claims that the court's charge, above quoted, did not apply the law given therein, that when a person is unlawfully attacked he is not bound to retreat in order to avoid the necessity of killing his assailant. It is not shown by his contention, and we can not understand, how it could be more aptly or completely applied to this case, than it was by the charge of the court above quoted. It specifically tells the jury this in the first part of the charge and again in the latter part, and no possible injury could have occurred to appellant by not further applying it, nor can we understand how it could have been otherwise applied than it was by the court's charge. Again, he complains that the court did not tell the jury that, in view of the threats by deceased, appellant had the right to carry arms in his necessary defense. This was not necessary nor in any way called for. The court, as above stated, did not charge on provoking the difficulty, nor in any other way by his charge curtail appellant's right of self-defense, either generally or because of threats, but in the broadest and most comprehensive sense embraced both of these subjects completely and aptly in appellant's favor. Appellant seems to confuse when such charge ought to be given. If the court had charged on provoking the difficulty by appellant, or had otherwise restricted or limited his complete right of self-defense, then perhaps such charge should have been given. It has repeatedly and expressly been held by this court, that it is only necessary or proper to give such charge when the court charges on provoking the difficulty, or otherwise limits appellant's complete right of self-defense. Williford v. State, 38 Tex.Crim. Rep.; Fox v. State,71 Tex. Crim. 318, 158 S.W. Rep., 1141.

Again appellant claims that the court ought to have told the jury that the appellant was not bound to take some other road to town, or diverge from his usual course in order to avoid meeting the deceased. The testimony in this case does not raise any such issue. The State never even asked appellant anything about it, either directly or indirectly, nor did the State in any way contend, so far as this record shows, that appellant ought not to have gone this road to town but some other, but it was conceded by all of the State's testimony, where the subject was mentioned at all, that this was the road to town, the one usually traveled not only by appellant but by everybody else in that neighborhood. Some time after the killing the appellant had a surveyor to go out on the ground and measure the distances and tell about the timber intervening between appellant's house and where he killed the deceased. Not a word of this testimony indicates that there was any other road that he should, or could, have traveled, other than the one he was traveling, in going to town. All this testimony was introduced for the purpose of attempting to show that Mrs. Head, one of the State's witnesses, could not have seen the deceased, nor his team at the time nor immediately after the shooting, because of the obstructions from appellant's house to where deceased was killed, for the purpose of disputing her on the point when she testified what she saw of the parties at the time and immediately after the killing. There was much testimony on this subject, and by experiments from both points by various witnesses, — some placing themselves at appellant's house and gate, and others where the deceased's body fell, and looking from one to the other, some testifying that she could have seen, others that she could not. None of this testimony was introduced or remotely used for the purpose of showing that appellant ought to have taken some other route to town instead of the one he did.

Appellant requested and the court refused to give the fourth special charge. Omitting the formal parts, it is: "In connection with the law of self-defense you are further instructed: That if you find and believe from the evidence in this case, that Will Griffin, the deceased, threatened to take the life of the defendant, Bun Carey, or to do him some serious bodily harm, and that said threats were communicated to him prior to the killing, or that deceased at the time of the homicide threatened to take the life of the defendant, and at the time of the homicide, the deceased, by words or acts, or gestures, or any overt act, manifested an intention to execute said threat and viewed from the standpoint of the defendant alone, it produced in the defendant's mind a reasonable expectation of death or serious bodily injury, or if you have a reasonable doubt thereof, you should acquit the defendant, and this you should do, although you may believe at the time, that said threats were untrue and that Will Griffin did not intend to kill the defendant, Bun Carey. In this connection you are further instructed, that it is immaterial whether any threats were made prior to the homicide or that said threats were true, it is only necessary to defendant's right of self-defense, that he had been told that deceased had threatened his life or to do him some serious bodily harm, and that the deceased at the time manifested an intention by words, acts, or conduct, to execute said threats, viewed from the standpoint of the defendant alone, sufficient to raise in the defendant's mind a reasonable expectation of death or serious bodily harm, and if so, defendant had the right to kill the deceased, and if you so believe from the evidence, or have a reasonable doubt thereof, you should acquit the defendant and say by your verdict not guilty."

In connection with the refusal of the court to give this charge, appellant again criticises the court's charge on the subject of threats above copied, basing his complaint largely, if not wholly, in this court, on two grounds, — first, that it required the jury to believe that the threats relied on had beenactually made; second, that the court's charge required the jury to believe that the deceased had threatened appellant's life, and had also threatened to do him serious bodily injury. Whereas, he claims that if deceased made the threats to do either, he was entitled to act with reference thereto.

It will be noted in the court's charge above copied, that in paragraphs 30 and 31, where the statute uses, and the court should have used, the word "execute," the court, by inadvertence, used the word "excuse." As to this, the court explains, that the use of the word "excuse" in his charge was an error of the typewriter, not detected by him, nor by the attorneys on either side, and evidently not by the jury, and he says that before the argument of the case he gave his charge to appellant's attorneys and they each, in reading it to the jury, read the word "excuse" "execute" and discussed the case on that theory and that alone as to this word, and that he, when he read his charge to the jury, read the word therein as "execute" and not "excuse." We think, under the circumstances, no possible injury could occur or did occur by the use of this word therein, taking the context and the circumstances into consideration.

Now as to the question of the court's charge requiring that the threats were actually made and the charge requiring the jury to believe that deceased made threats both to take appellant's life and also threatened to do him bodily injury. It is now elementary and well established in this State, both by statute and a large number of decisions of this court, that this court is not authorized, — in fact, by statute expressly forbidden (C.C.P., art. 743, as before the recent amendment thereof), to reverse any judgment of the lower court "unless the error appearing from the record was calculated to injure the rights of the defendant." It is unnecessary to cite the many cases.

The evidence in this case, without contradiction and without contest by the State, clearly shows that deceased did make certain threats against appellant and that he had absolute notice and knowledge thereof before the killing.

Mr. Talbert, appellant's witness, testified that on February 22nd, before the killing on March 17th following, he was present when deceased and appellant were together and deceased said, "Carey, I can whip you." Appellant replied, "Yes, I guess you could, Will." Appellant himself testified to substantially, if not precisely the same thing, he stating that deceased said, "``Carey, I can lick you,' and I said, ``I know it, Will,' and laughed at him and went on cutting posts and five minutes afterwards, I reckon, he came back by and never said anything to me."

Appellant's witness, Wideman, testified that on Sunday, three weeks before the killing on Monday, he and appellant were together in appellant's oat field when deceased came to them; that after some controversy between them about their trouble, deceased said to appellant, that because he had forbidden him to come on his land he could kill appellant and the law wouldn't hurt him, and in the same conversation at the time attempted with a rock to kill appellant but was prevented by him, the witness, and that when they separated deceased told appellant in substance that he, deceased, was going to kill appellant and that his folks would find him hung by his toes. Appellant himself testified to substantially the same thing as to what occurred on this occasion, as did his witness Wideman.

Appellant's witness, Mr. Stutts, testified that on Sunday night February 22nd, after the altercation in appellant's oat field, testified to by him and his witness, Wideman, that deceased and his wife were at the house of witness and that he told him about said altercation and that Carey was a grand rascal and he wasn't going to be run over by him and that he was "too damn little" to run over him and that he was going to take as much hide off of appellant's head as he (appellant) had taken ground off of his (deceased's) rows. Mrs. Stutts testified that on the same Sunday evening when deceased was at her home, she heard him state that he didn't like Bun Carey and aimed to have a settlement with him in some way, and that she (Mrs. Stutts) told Mrs. Carey about this.

Elmo Head, appellant's witness, testified that on Saturday evening two weeks before the killing Monday, deceased told him that if Carey plowed any more of his ground that he was going to take as much skin off of his head as Carey took off of his land, and he said he could whip Carey and would do it; and that deceased further told him that Carey was going to keep on mussing with him till he whipped him and that he would get him yet. Head testified that he told Mrs. Carey of this before the homicide. Mrs. Carey testified that Head told her husband of this and she also told her husband before the homicide that Mrs. Head had told her all these same things and that she had told her husband thereof.

This is substantially all the testimony on the subject and, as said above, it establishes without question and without controversy, that whatever threats to kill or to do any bodily injury to appellant by deceased, were known to him before the homicide. There is no indication in the record, from the whole statement of facts, that any of these threats or the communication of them to appellant was contested by the State or disputed by it in any way, but it seems clearly to have been conceded by the State that said threats had been made and appellant knew of them, — in fact, most of them made to him personally in the presence of others, and those not so made had been communicated to him. So that the court's charge, on none of the grounds on which it is attacked by appellant, presents any reversible error. Appellant was not and could not have been injured thereby, even if the court did, by his charge, in effect, tell the jury they must believe the threats were actually made, and that threats, both to kill and do serious injury, were made. The court's charge fully, aptly and completely presented every issue on these subjects as favorably to appellant as the evidence authorized.

It is unnecessary to discuss any of appellant's other special charges which were refused by the court, or any other criticism of the court's charge. None of them present any reversible error.

Appellant's bill, as qualified by the court, shows no error in excluding the testimony of Mrs. Stutts as to what her husband told her. And, as qualified by the court, appellant's bills to the testimony of Mrs. Head shows no error, — all her testimony was admissible.

There being no reversible error shown, the judgment will be affirmed.

Affirmed.

[Rehearing denied May 27, 1914. — Reporter.]